Israel’s High Court allows transfers of Sudanese and Eritreans to Rwanda and Uganda but strikes down indefinite imprisonment: an analysis

Israel’s High Court allows transfers of Sudanese and Eritreans to Rwanda and Uganda but strikes down indefinite imprisonment: an analysis

Published: 21 Sep 2017

By: Yotam Gidron

On 28 August Israel’s High Court of Justice issued its ruling in an appeal on a district court decision concerning Israel’s “voluntary departures” scheme. Under this scheme, Eritreans and Sudanese irregular migrants are transferred from Israel to unnamed “third countries” in Africa. Israel has never disclosed the names of the countries involved in this scheme, as the agreements it has reached with them are confidential, but they are widely known to be Uganda and Rwanda. The court ruled that Israel can continue to send migrants to Rwanda (the relevant country in this specific case), but cannot imprison those who refuse to leave for more than 60 days.

The appeal was filed by two Eritreans whose asylum applications had been rejected, but who are still protected from being deported back to Eritrea under Israel’s policy of “temporary delay of deportation”. The two individuals refused to leave Israel voluntarily for Rwanda and the Israeli state sought to jail them until they agreed. Thus, the case focused specifically on the transfers scheme currently in place between Israel and Rwanda.

The decision focused on two separate questions. The first was whether the two Eritreans could be sent to Rwanda (which is referred to solely as “the third country” in the judgment). The second was whether the state could jail them if they “refuse to agree” to leave to Rwanda. The court held – in a unanimous decision – that the answer to the first question is positive, while the answer to the second question is negative.

What the court said

The court started by examining whether or not Rwanda could be regarded as a “safe third country” – that is, whether the rights and freedoms of those sent to Rwanda are respected and whether or not they are put at risk of refoulement – either because their rights will be violated in Rwanda, or because Rwanda will deport them back to their countries of origin.

The appellants claimed that Rwanda is not safe, because other individuals who were sent there under Israel’s “voluntary departures” scheme have not been given identity documents or a legal status and were effectively forced to travel, with the assistance of smugglers, into Uganda, where they were also left with no legal status. Relying on classified information provided by the state, the court held that most of the problems the appellants mentioned had either already been solved, or represent isolated exceptions rather than the rule. Thus, it held that Rwanda can be regarded as a safe country.

Research by NGOs and the media in recent years clearly contradicts the state’s argument that those transferred are granted a legal status and live safely in the “third countries”. IRRI’s 2015 report “I was left with nothing” documented how Eritreans and Sudanese sent to Uganda and Rwanda are not granted legal status and face obstacles in accessing the local asylum systems. Data collected by journalists and Israeli NGOs pointed to similar problems. While it is not impossible that Israel has introduced improvements to the scheme, no information supporting the state’s arguments about the safety of those transferred has been made public.

The second issue the court examined was the “procedural conditions” for sending people to Rwanda: the content of the agreement between Israel and Rwanda and its status as a legally binding instrument, enforceable in a court of law. The court noted that the confidentiality of the agreement between Israel and Rwanda is unique, as bilateral transfer agreements are usually made public, and recognised that this makes the agreement highly problematic. Nevertheless, it held that the confidentiality of the agreement per se is not sufficient to render it void.

The court held that the agreement between Israel and Rwanda clearly stipulates the obligations of each of the states and is therefore valid and enforceable. The state presented the agreement to the court, in camera, but did not make it public.

Finally, the court held that the post-transfer monitoring mechanisms that were put in place by Israel to guarantee the implementation of the agreement are sufficient. Israel mainly relies on data from the Rwandan authorities to monitor the agreement’s implementation, but has also argued that it regularly attempts to contact those sent to “third countries” following their transfer, in order to inquire whether they encountered any problems at their destination. It admitted that in practice, out of 1,298 Africans that left Israel for Uganda and Rwanda between January 2015 and February 2016, it was able to contact only 283, but argued that the vast majority of these did not encounter any problems.

The court found that the data provided by the Rwandan authorities to the Israeli authorities on the implementation of the agreement is reliable, as it is supported by phone conversations with at least some of those who are transferred there. It also noted that Israel and Rwanda maintain close diplomatic ties that enable them to solve problems in the implementation of the agreements “if they arise”.

Having satisfied itself that the conditions for sending individuals to Rwanda are being met, the court went on to examine whether those who refuse to leave voluntarily to these countries can be imprisoned indefinitely or until they agree to leave. Its response to this question was negative.

Israeli law allows for the imprisonment of migrants for up to 60 days if they are deportable and for the purpose of enforcing their deportation order. Imprisonment for more than 60 days is allowed if the migrant refuses to cooperate with his or her removal and intentionally undermines it. Since Israel’s transfers scheme is formally a voluntary one and the confidential agreements between Israel and Uganda and Rwanda – at least according to the court’s interpretation – only allow Israel to send people to these “third countries” if they agree to leave voluntarily, the court held that one’s refusal to leave Israel does not constitute lack of cooperation with one’s removal. In other words, the court simply held that the state cannot use imprisonment to force people to “voluntarily” leave the country.

Implications

The second part of the decision is clearly good news for Eritreans and Sudanese in Israel, as it effectively prohibits the state from using indefinite imprisonment to “convince” migrants to leave the country. While the policy under discussion only concerns those foreigners whose asylum claims were rejected, it is relevant to almost all Eritreans and Sudanese in Israel, as Israel rejects almost all asylum applications.

Nevertheless, as in previous cases in recent years in which the High Court struck down Israel’s migration policies, the government was quick to announce that it intends to introduce new policies that will allow it to effectively bypass the court’s decision.

Israel is now reportedly trying to amend the agreements with Rwanda and Uganda so that the consent of those transferred will not be required. It is not entirely clear under what conditions Rwanda and Uganda agreed to take Africans from Israel, as both have never officially admitted receiving migrants from Israel. The question now, however, is whether the two countries will formally agree to accept Africans who are deported from Israel by force and without their consent. Israel may pressure them to do so, but agreeing to such a deal might also bring bad publicity to the two countries.

In addition, the Israeli government is also promoting an amendment to Israel’s national legislation which would allow for the indefinite detention of asylum seekers who refuse to leave and Israel’s Interior Minister, Aryeh Deri, suggested that Israel would prohibit the employment of those who refuse to leave voluntarily. It is unclear when and whether at all these policies will be implemented, and it is hard to see how the government will be able to defend them if challenged at court if the agreements with Rwanda and Uganda are not amended as well.

Conclusion

As of July 2017, Israel hosted 27,494 Eritreans and 7,869 Sudanese who have entered the country irregularly through its southern border with Egypt. Israel officially recognises that the vast majority of these people cannot be deported back to their country and, in the case of Eritreans, also recognises that their deportation will amount to a violation of the principle of non-refoulement.

Nevertheless, for years Israel has been applying significant pressure on African asylum seekers to leave the country, employing harsh policies and financial incentives that are meant to make leaving Israel more attractive than staying. These measures have had an effect: since the beginning of 2014, more than 15,000 asylum seekers have left Israel. Many have gone back to their countries of origin, others have left for Uganda and Rwanda (often moving on to other countries, including to Europe), while some were resettled in western countries such as the US, Canada or Europe, often with the assistance of UNHCR.

For now, the court has prevented the Israeli government from using indefinite imprisonment to force people out of the country. But Israel is not likely to change its overall approach to asylum seekers as a result of this ruling. As the number of people displaced around the world is at its highest in decades, Israel still proudly strives to maintain its global standing as one of the least welcoming places for refugees. By making it clear that they refuse to accept migrants that were deported by force, Rwanda and Uganda can still make it harder for Israel to humiliate Eritreans and Sudanese.